Citation Nr: 0707266
Decision Date: 03/12/07 Archive Date: 03/20/07
DOCKET NO. 05-10 696 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to an increased rating for residuals of
arthroscopic surgery with traumatic arthritis of the left
knee, hereafter a left knee disability, currently rated 10
percent disabling.
ATTORNEY FOR THE BOARD
Amy R. Grasman, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1987 to January
1992.
This appeal comes before the Board of Veterans' Appeals
(Board) from a August 2004 RO decision.
FINDING OF FACT
The veteran's left knee disability is manifested by crepitus,
edema, tenderness, painful movement and guarding relating to
past arthroscopic surgeries and degenerative arthritis, but
without demonstrable instability or subluxation.
CONCLUSIONS OF LAW
1. The veteran's service-connected left knee disability is
assigned a 10 percent rating, the maximum rating authorized
under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5259 (2006).
2. The criteria for a separate rating for a left knee
disability have been met under 38 C.F.R. § 4.71a, DC 5003,
5010. (2006).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
On receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2006). The
notice must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004).
The RO sent correspondence in May 2004, April 2005, February
2006 and March 2006; a rating decision in August 2004; a
statement of the case in March 2005; and supplemental
statements of the case in January 2006 and August 2006. The
above documents discussed specific types of evidence, the
applicable legal requirements, the evidence considered, the
pertinent laws and regulations, and the reasons for the
decisions. VA made all efforts to notify and to assist the
appellant with regard to the evidence obtained, the evidence
needed, the responsibilities of the parties in obtaining the
evidence, and the general notice of the need for any evidence
in the appellant's possession. The Board finds that even if
there is any defect with regard to the timing or content of
any of the notices sent prior to the RO's initial
adjudication, that defect is harmless because of the thorough
and informative notices provided throughout the adjudication
and because the appellant has had a meaningful opportunity to
participate effectively in the processing of the claim with
an adjudication of the claim by the RO subsequent to receipt
of the required notice. In fact, the veteran responded to
the RO's VCAA notice in February 2006 and in March 2006
indicating that he had no other evidence to submit in support
of his claim. Thus, VA effectively complied with all of the
required elements under VA's duty to notify claimants prior
to the last adjudication.
Indeed, the veteran has not demonstrated how any defective
notice has prejudiced him in the essential fairness of the
adjudication. Thus, there has been no prejudice to the
veteran, and any defect in the timing or content of the
notices has not affected the fairness of the adjudication.
See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield
v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically
declining to address harmless error doctrine); see also
Dingess v. Nicholson, 19 Vet. App. 473 (2006); cf. Locklear
v. Nicholson, 20 Vet. App. 410, 415-16 (2006) (duty to notify
does not extend in perpetuity or impose duty on VA to provide
notice on receipt of every piece of evidence or information).
Thus, VA satisfied its duty to notify the appellant.
Also, VA has obtained all relevant, identified and available
evidence needed for adjudication of the claim and has
notified the appellant of any evidence that could not be
obtained. VA has also examined the veteran. Thus, VA has
satisfied both the notice and duty to assist provisions of
the law. The Board now turns to the merits of the claim.
Ratings for service-connected disabilities are determined by
comparing the symptoms the veteran is presently experiencing
with criteria set forth in VA's Schedule for Rating
Disabilities, which is based as far as practical on average
impairment in earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1 (2006). Separate diagnostic codes identify the
various disabilities. When a question arises as to which of
two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7 (2006).
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran. 38
C.F.R. § 4.3 (2006). Also, when making determinations as to
the appropriate rating to be assigned, VA must take into
account the veteran's entire medical history and
circumstances. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1
Vet. App. 589, 592 (1995).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Evaluating the disability under several diagnostic codes, the
Board considers the level of impairment of the ability to
engage in ordinary activities, including employment, and
assesses the effect of pain on those activities. 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59 (2006); see DeLuca v. Brown, 8 Vet.
App. 202, 206 (1995).
Separate disability ratings may be assigned for distinct
disabilities resulting from the same injury so long as the
symptomatology for one condition is not "duplicative of or
overlapping with the symptomatology" of the other condition.
Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
In this case, the RO assigned a rating for cartilage,
semilunar, removal of, symptomatic under DC 5259. The
maximum rating under this DC is 10 percent. 38 C.F.R.
§ 4.71a DC 5259. Included within 38 C.F.R. § 4.71 are
multiple diagnostic codes that evaluate impairment resulting
from service-connected knee disorders, including DC 5256
(ankylosis), DC 5257 (other impairment, including recurrent
subluxation or lateral instability), DC 5258 (dislocated
semilunar cartilage), DC 5260 (limitation of flexion),
DC 5261 (limitation of extension), DC 5262 (impairment of the
tibia and fibula), and DC 5263 (genu recurvatum).
Treatment records from May 2003 to April 2004 indicate
degenerative disease in the veteran's left knee. He was able
to perform his job and had occasional exacerbations of
increasing knee pain and swelling. These records show that
the veteran received post operative treatment for his knee
and received a knee brace with metal supports.
An MRI of the veteran's left knee was taken in June 2004 for
a VA Compensation and Pension examination. The physician
found that the veteran had intact left lower extremity
sensation and minimal tenderness with patellar shrug and
grind. He also had slight medial joint line tenderness. The
veteran's range of motion was 0 to 140 degrees. There was
anatomical alignment without acute fracture of the left knee.
There was a small calcification of the patellar ligament near
its insertion on the tibia. The joint spaces were
maintained.
In January 2005, a VA physician also examined the veteran and
the June 2004 MRI. The physician found abnormal signal
throughout the posterior horn and body of the medial meniscus
compatible with an extensive meniscal tear. The tear
extended to the root of the meniscus and the lateral meniscus
was intact. The anterior cruciate ligament and posterior
cruciate ligament were intact. The medical collateral
ligament and lateral collateral ligament were intact. There
were cystic changes identified in the lateral patellar facet
compatible with degenerative change. The joint spaces
throughout the knee were relatively well preserved. The
visualized portions of the knee extensor mechanism were
intact and there was a small joint effusion. The physician's
impression was extensive medial meniscal tear involving the
posterior horn and body and root of the medial meniscus.
There was mild degenerative joint disease in the
patellofemoral compartment.
In September 2005, the veteran sought VA treatment for his
knee disability. The physician found that the veteran had
degenerative disease in his left knee, but is able to perform
his job and had occasional exacerbations of increasing knee
pain and swelling.
A June 2006 VA Compensation and Pension examination indicates
that the veteran had two arthroscopic surgeries on his left
knee, one in 1991 and one in 2000. The veteran had to use a
brace for walking. The examiner found that the veteran was
unable to stand more than a few minutes and he could walk 1/4
mile.
The veteran reported that his left knee was "giving way"
and there was instability. There was also pain, stiffness,
and weakness, but no episodes of dislocation or subluxation.
There were locking episodes approximately one or two times a
year. The veteran reported that there was constant effusion
and there were severe weekly flare-ups.
Upon a physical examination the examiner found that the
veteran experienced pain during extension at -10 degrees
during active motion against gravity. The veteran also
experienced pain during passive range of motion during
extension between -6 and -10 degrees. During range of motion
against strong resistance, the veteran experienced pain at -
20 degrees and there was also limited range of motion on
repetitive use from -20 to -25 degrees because of pain.
The veteran experienced pain during flexion between 100 and
110 degrees during active motion against gravity and at 120
degrees during passive range of motion. The veteran also
experienced pain during range of motion against strong
resistance between 110 and 113 degrees. There was also
limited range of motion on repetitive use from 0 to 110
degrees because of pain.
The examiner found that there was crepitus, edema,
tenderness, painful movement, and guarding of movement of the
veteran's left knee. There was no inflammatory arthritis,
joint ankylosis, bumps, clicks, snaps, grinding, instability
or patellar or meniscus abnormalities.
An x-ray was taken of the veteran's knee which indicated no
apparent interval changes since the June 2004 MRI. There
were very small fragmented enthesophyte noted at the tibial
tuberosity which may be dystrophic soft tissue
ossification/calcification following an old injury. There was
no noted evidence of degenerative or inflammatory arthropathy
involving the knee joint.
The examiner's impression was no change in the veteran's knee
since June 2004. There was a small fragmented enthesophyte
noted at the tibial tuberosity suggesting the possibility of
an old localized trauma resulting from dystrophic soft tissue
calcification/ossification at the insertion of the
infrapatellar tendon.
The examiner also noted the results of the June 2004 MRI
which were extensive medial meniscal tear involving the
posterior horn and body and root of the medial meniscus and
mild degenerative joint disease in the patellofemoral
compartment.
The examiner's diagnosis was the veteran had a left knee
condition the etiology of which was degenerative joint
disease. This disability also had significant effects on the
veteran's occupational activities including decreased
mobility, decreased strength and pain. The examiner also
found that there were effects on the veteran's daily
activities including a mild effect on his chores, shopping,
and traveling; moderate effects on the veteran's exercise and
recreation; and severe effects on his sporting activities.
The veteran is currently rated at 10 percent disabling under
DC 5259, the maximum rating under this code. See 38 C.F.R.
§ 4.71a DC 5259.
The Board will also consider whether the veteran's is
entitled to a higher or separate rating for his left knee
disability under other diagnostic codes.
The Board finds that the manifestations compensated under DC
5259 are not the same as the manifestations of limitation of
motion contemplated under DC 5003. The veteran's
symptomatology includes crepitus, edema, painful movement,
tenderness and guarding. The medical evidence also provides
a diagnosis of degenerative joint disease, therefore, a
separate rating may be assigned under DC 5003. See
VAOPGCPREC 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (Oct.
22, 1998); 38 C.F.R. § 4.59; Litchenfels v. Derwinski, 1 Vet.
App. 484, 488 (1991).
Under DC 5003 traumatic arthritis is rated analogous to
degenerative arthritis. Degenerative arthritis, when
established by X-ray findings, will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. When the
limitation of motion of the specific joint or joints involved
is noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion to be combined, not added under Diagnostic Code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm or satisfactory
evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003.
For purpose of rating a disability from arthritis, the knee
is considered a major joint. 38 C.F.R. § 4.45(f). The
diagnostic codes that focus on limitation of motion of the
knee are DC 5260 and DC 5261.
Normal range of motion of the knee is to zero degrees
extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a,
Plate II. Under Diagnostic Code 5260, a noncompensable
rating will be assigned for limitation of flexion of the leg
to 60 degrees; a 10 percent rating will be assigned for
limitation of flexion of the leg to 45 degrees; a 20 percent
rating will be assigned for limitation of flexion of the leg
to 30 degrees; and a 30 percent rating will be assigned for
limitation of flexion of the leg to 15 degrees. See 38
C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code
5261, a noncompensable rating will be assigned for limitation
of extension of the leg to 5 degrees; a 10 percent rating
will be assigned for limitation of extension of the leg to 10
degrees; a 20 percent rating will be assigned for limitation
of extension of the leg to 15 degrees; a 30 percent rating
will be assigned for limitation of extension of the leg to 20
degrees; a 40 percent rating will be assigned for limitation
of extension of the leg to 30 degrees; and a 50 percent
rating will be assigned for limitation of extension of the
leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261,
See also VAOPGCPREC 9-04 (which finds that separate ratings
under Diagnostic Code 5260 for limitation of flexion of the
leg and Diagnostic Code 5261 for limitation of extension of
the leg may be assigned for disability of the same joint).
In this case, the veteran has painful motion, however, the
limitation of motion due to left knee pain is not
compensable. The June 2006 VA examination indicates that the
veteran's pain limits the motion in his left knee to 115
degrees on extension and 110 degrees on flexion, and 0-110 on
active range of motion and 0-120 on passive range of motion,
not compensable under DCs 5260 or 5261. Although the
veteran's limitation of motion is noncompensable, he is
awarded a separate rating of 10 percent because there is
painful motion as well as x-ray evidence of arthritis in his
left knee, a major joint, as portrayed in the June 2004 MRI
and the June 2006 VA examination. See 38 C.F.R. § 4.71a DC
5003, 4.59.
The Board considered if the veteran's left knee disability
could be rated under DC 5257 for other impairment of the
knee, to include recurrent subluxation or lateral instability
of this joint. The veteran reports that he experiences
instability of the knee. However, the June 2006 VA examiner
did not find instability and there is no other corroborative
evidence of instability. Therefore, absent objective medical
evidence of instability, the veteran is not entitled to a
separate rating under DC 5257.
The Board also considered if the veteran's left knee
disability could be rated under any other code. The Board
finds that DC 5256 does not apply as there is no ankylosis of
the veteran's left knee. DC 5258 also does not apply because
there is no dislocated semilunar cartilage since the
veteran's 1991 and 2000 surgeries. Additionally, there is no
impairment of the tibia and fibula or genu recurvatum
therefore, DCs 5262 and 5263 do not apply.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to rating in excess of 10 percent for residuals
of left knee arthroscopic surgery is denied.
Entitlement to a separate rating of 10 percent for left knee
arthritis is granted.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs